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certs and the like.
not constable's notice of sale, such as has only by that part of the act which I have been attempted to be framed here. quoted, but also from the proviso, which without passing upon that question, we declares, that the penalties of the act feel called upon to condemn this indicishall not apply "to those tearing down ment as lacking in that particularity of or removing show bills, play bills, posters averment which the pleader in set(or) programmes, after the performance ting out an offense of such a character therein alvertised, or to the owner or would at least be bound to observe. tenant of any building, fence or other There is nothing here to describe, locate structure, when the same has been post- or limit the charge except the most gened or put up without his or their consent, eral terms. No constable is named, nor except such owner or tenant be the bill any process given, nor any locality desigposter putting up or employed to put up nated. It might be made to apply to any the same." It is true that the statute constable in the county, and to any prouses the expression, "other advertise- cess, which he might happen to have hal ment," and it is contended that this is in his hands within two years on which broad enough to cover a constable's no- he advertised the defendant's property tice. But it is a familiar rule of construc- for sale, whether landlord's warrant or tion, that terms which are employed to- execution. This is altogether 100 vague gether in an enactment as are these, are and indefinite. It amounts to no notice to be considered as of kindred signifi- to the defendant of the charge which she cance, the more general meaning of the is called upon to meet, nor is it sufficione being controlled by the particular ex- ently certain to bar a second indictment. pression of the other; Pariiee's Appeal, It may be added that this objection ap100 Pa. 412. What is meant in this plies, whether our opinion as to its sufficonnection therefore is other advertise- ciency as an indictment under the staments of like character with those al- tute is correct or not. ready enumerated. It is not intended to The rule is made absolute and the inapply to anything and everything set up dictment quashed. along the highway which may be designated as an advertisement, but rather to Q. S. of the bills and posters giving notice of or
Road in Huntington. advertising public entertainments. The Roads-Necessity. public have an interest in the informa Where there is a report of viewers in favor of, and
a report of reviewers against, a proposed road, and it tion conveyed by these and therefore in appeared that there were ninety miles of road in the the preservation of them until after the township, that the ordinary taxes were insufficient to time for the performances of which they were them hin dreper repair that the damages assessed gave notice have gone by, and this fur- road and bridging the creek would be from one to nishes an occasion and a legitimate basis two or three families, the existing roads accommodated for the passage of the statute. We are law Patforded an ample remedy for those specially
the public reasonably well, and where the private road not justified in extending it beyond its interested, it was held that there was no such public
necessity for the road as the law contemplates. proper purpose.
Exceptions to report of viewers. An attempt has been made lowever 10 justify this indictment at common law
F.W. Larned for road. and we have held the case under advise I. P. Hand, contra. ment rather on that account than be June 12, 1893. Rice, P. J.-Two of cause of any doubt about its not coming the three viewers report in favor of the under the statute. In Pennsylvania vs. proposed road, and the three reviewers Gillespie, Addison 267, an indictment report against it. It would have been a was sustained which charged the defend- proper case for a re-review, but as this ant with unlawfully, forcibly and con- was not asked for, we must decide betemptuously tearing down, and contemp- tween the two conflicting reports. We tuously refusing to replace an advertise- have uniformly held in such cases that ment set up by the commissioners of the burden of proving the necessity for Fayette county for the sale of lands for the road to accommodate the public rests taxes. This would seem to go a long upon the petitioners, and if, upon a fair way towards sustaining an indictment for consideration of the reports and the testiwillfully and maliciously tearing down a mony, the court is not satisfied that the
road is needed for public accommodation, cause plaintiffs have not shown that the it must fall. The difficulty and expense assignee received, from the drafts, any of keeping in proper repair existing roads money which he added to or mingled are sufficient reasons for refusing to open with the general mass of deposits in the new roads where the public necessity bank, or that any money in bank was therefor is doubtful; Road in Hazle, 6 ever set apart, or in any manner apKulp 463, and cases cited. There are propriated to the payment of the drafts, ninety miles of road in Huntington town- therefore plaintiffs cannot invoke the ship, and we can readily see, as alleged principle that equity will follow trust by the exceptants, that the ordinary property through all transmutations into taxes are insufficient to keep these exist- which it can be traced; even if drafts had ing roads in as good condition as they been actually paid in cash instead of should be. The damages assessed in merely charged, it is probable that plainfavor of property owners along the line tiffs would not have preference over of the proposed road are two hundreu general creditors in the absence of identidollars. The cost of opening the road fication.-Freiberg, et al. v. Stoddart, and bridging the creek will be from one (Luzerne C. P.) 7 Kulp 157. to two thousand dollars. With the ex
Streets:Opening of Duties of viewers ception of two or three families the existing roads accommodate the general iimate and determine the damages and
-The report of viewers appointed to es public reasonably well, and the private benefits arising out of street improveroad law affords an ample remedy for those specially interested. Upon á full ments under the Act of May 16. 1891, F. consideration of all the facts we do not ei a schedule of the damages and benefits
L. 75, must show that the viewers preparthink we would be warranted in saying allowed and assessed in the case of each that there is such a public necessity for this road the law contemplates. party interested, and that notice was Therefore, the exceptions to the report place where the viewers would meet and
givial to all the parties of the time and of viewers are sustained an.1 the report exhibii the schedule and hear all ex; is set aside.
ceptions thereto and the ev::dence; and
the viewers should file with their réport Abstracts of Recent Decisions. a plan showing the improvement, the
properties taken, injured or destruye 1,
and the properties benefitied by the im(Cases not otherwise designated are provement.-McDermott v. City of Neso Supreme Court cases.)
Castle, (Lawrence C. P.) 24 Pittsburgh
Legal Journal 97. Equity-Right to follow trust fund. Will-Construction of- Absolute bePlaintiffs sent to Rockafellow & Co. quest.—A bequest by a father to his bankers, for collection and remittance, caughter of his personal estate "during two drafts upon certain persons who had her life-time, and absolutely should she ceposit accounts with the bankers, and leave issue at 'her decease; otherwise I the drafts, after acceptance, were charg. give and bequeath one-half of the unexed against those accounts, one draft on pended balance of the bequests to her by February 1, the other on February 7, anl me herein made to my son, C., and his remittance made by exchange, legal representatives after her decease, which was subsequently protested for she to have the sole benefit and control non-payment. On February 8 the bank thereof during her life time, with full being insolvent, closed their doors, and privilege and authority to dispose of the on February 11 assigned to the defend- remaining one-half of the unexpended ant for the benefit of creditors. The as- portion of the bequests to her aforesaid signee, upon taking charge, found cash in such manner as she may deem proon hand exceeding the amount of the per.” HELD, that the legatee was endrafts. Upon bill filed to restrain distri- titled to the absolute use of the fund durbution among general creditors and to ing her life time without security.compel payment of said amount, the Hughes' estate, (Montgomery C. P.) 9 court refused preliminary injunction be- Montgomery Law Reporter 176.
Work Regal Record. sum of two hundred ($200) dollars, on
account of the principal of said judgmen! Vol. VII. THURSDAY, NOV. 2, 1893. No. 21. and six ($6) dollars interest on the same,
from the time of the making of sai:/ loan COMMON PLEAS. to the time of the payment of the said
two hundred ($200) dollars, as aforesaid. Standard Building Association v. Hishel et al. That said William Fishel, defendant, Affidavit of defence-Sufficiency-Aver- paid the interest upon the said two hunments.
dred ($200) dollars, then remaining due, The affidavit of defence averred that defend- up to the 2nd day of April, 1890. ants had borrowed $400 from M, and gave their That on the 2nd day of April, 1890, bond therefor; that shortly afterward $200 of said William Fishel loaned from the said this amount with interest thereon, was paid; Standard Building & Loan Association of that one of the defendants borrowed $500 from the : plaintiff Association and gave his bond York, Pa., the above use plaintiff, the therefor; that said Association, out of said $500. sum of five hundred ($500) dollars, and paid to M. the balance on his bond and had the gave said. Association his certain judgsame transferred to it, said payment and trans- ment bond for the same, which was duly fer being without the knowledge or consent entered upon said last mentioned day in of said defendants; and that about $275 had
in said been paid by one of the defendants to said the Prothonotary's Office, Association plaintiff, "which will about pay the County. balance due on said judgment.” On a motion That out of said sum of five hundred for judgment for want of a sufficient affidavit ($500) dollars, loaned to said William of defence, HELD, that the motion must be Fishel by said Association, the balance of overruled.
two hundred ($200) dollars, due upon The last allegation of payment of “about" $275 to the Association since April 2, 1890, is said judgment to said Hugh W. McCall not sufficiently specific and certain to prevent was paid, and the said judgment transjudgment.
ferred upon the record to said AssociaThe payment of the $200 out of the money tion. borrowed from the Association, is sufficiently That said payment of the said judgaverred to be a bar to judgment, and while its ment of Hugh W. McCall by said Assoforce is weakened by the averment of such payment and transfer without the knowledge ciation and the transfer of said judgment of the defendants, yet in favor of a trial by to said Association, was done without jury the Court will infer that such allegations the knowledge or consent of either of the were intended to apply only to the transfer of said defendants, nor did either of the said the judgment.
defendants know that the same was Motion for judgment for want of a about to be done, nor that it had actually sufficient affidavit of defence.
been done, until within a very short time. Plaintiffs issued a scire facias to revise That since the 2nd day of April, 1890, the lien of a judgment assigned to them William Fischel, one of the defendants, by H. W. McCall, Esq.
has paid to said Association about the To this scire facias, defendants filed sum of two hundred and seventy-five the following affidavits of defence: ($275) dollars, which will about pay the
That on the 29th day of March, 1887, balance due upon said judgment so asWilliam Fishel, one of these defendants, signed to it by said Hugh W. McCall. borrowed from Hugh W. McCall, the That said defendants are not indebted legal plaintiff, the sum of four hundred to said plaintiff upon the above men($400) dollars, for which he gave his tioned judgment in any amount. All of certain judgment note for said amount, which they aver and expect to be able to payable to said Hugh W. McCall, and prove upon the trial of the cause. upon which George Fissel, the other de Plaintiffs then filed the following fendant, became the surety.
motion : The judgment was entered upon sail And now, August 7th, 1893, the Court note in the Prothonotary's Office, of is respectfully moved by N. Sargent Ross, said county, to No. 959, oi January attorney for plaintiff in above named Term, 1887.
case, to grant judgment for want of a That on the 27th day of September, sufficient affidavit of defence, for the sum 1887, William Fishel, one of the defend- of two hundred dollars, with interest ants, paid to said Hugh W. McCall, the from the 2nd day of April, A.D. 1890,
with costs and attorneys commissions, The last allegation of payment of and with all conditions, stipulations and about" $275.00 to the association since waivers contained in the original judg- April 2, 1890, is not sufficiently specific ment.
and certain to prevent judgment. The N. Sargent Ross for motion.
affidavit must not be uncertain or eva
sive; Allen v. National Bank of GermanStewart, Niles & Neff, contra.
town, 10 WV. N. C. 188. October 16, 1893.-BITTENGER, J. As a general rule no defence can be made on the judgment April 2, 1890, was paid
Is the averment that the balance due to actions on judgments except defences relating to matters and things subsequent fendant, William Fishel, from the asso
out of the moneys borrowed by the deto the judgment; Seymore v. Hubert, 92 ciation,'on bond of that date, qualified Pa. 499; Stroud's App., 109 Pa. 326. by the allegation immediately following, These matters are mostly confined to
that said payment and transfer of the payment or release. The affidavit of defence in the case and consent of the defendants, sufficient
judgment were without the knowledge under consideration is confined to allega- to move the Court to refuse judgment? tion of payment of the judgment to the
Averments of payment in affidavits original payee and the use plaintiff.
of defence must be distinctiy and not 1. It is alleged that William Fishel, one of the defendants, paid to the plaintiff , evasively set forth; Coulston v. Bertolet
. McCall, $200.00 and all interest on the
page 6371, pl. 92. Nothing can be left judgment, to April 1, 1890.
to inference; Peck v. Jones, 70 Pa. 83. 2. That the balance of $200.00 was It must not be vague and indefinite; paid out of money borrowed by William Langfeld v. Lyon, 132 Pa. 141. Fishel from the use plaintiff on a judgment bond, date:1 April 2, 1890, and the ficiently averred to have been paid
The payment of the $200.00 is sufjudgment assigned on the record to the holier thereof, the Standard Loan and sociation, on April 2, 1890, and must be
out of the money borrowed from the AsBuilding Association, plaintiffs.
a bar to judgment, unless the subsequent Then follows an averment that said averment of want of consent of defendpayment and transfer were made without
ants and knowledge thereof on the part the knowledge and consent of the defend- of said defen:lants, to the payment and ants, and that knowledge of the same transfer of said judgment, for a period was only obtained by them shortly be- of about two years after said alleged fore the filing of the affidavit of defence, judgment and transfer renders the aver(July 25, 1893).
ment of payment so vague and contradicThe affidavit further avers, in sub- tory as to entirely deprive it of the force stance, that since the 2nd day of April, and effect it would otherwise have. 1890, William Fishel, one of the defend
This is a close question. It is very ants, paid to the Association plaintiff, evident that the averment of payment is about $275, "which will about pay the materially weakened by what 'immedibalance due on said judgment."
ately follows. The absence of knowlIt is contended on the part of the plain- e Ige of the payment and transfer of the tiff that the affidavit is insensible and judgment and non-consent thereto, seem contradictory to such an extent as to inconsistent with payment out of the render it insufficient to prevent the entry moneys which one of the defendants borof judgment on the sci fa.
rowed from the Association, giving his While it is not stated on the recordi, bond for the same. Yet in favor of a for what amount the judgment is assign- trial by jury we may conclude, as coned to the association, and no credits ap- tended by counsel for defendants, that pear there, and the rule is for judgment, the allegations of want of knowledge and generally, it is admitted by counsel for consent intended to be averred, were in the plaintiff that the $200.00 and interest regard to the transfer of the judgment on the judgment, first specified in the af- and not its payment. fidavit, are paid. Judgment can in no It is alleged by plaintiff's counsel, sail event, therefore, be entered, except for transfer was made pursuant to agreethe balance.
ment, the existence of which agreement
C. P. of
there is as yet no evidence before us, son of the injury alleged to have occurred that fact can readily be established on a through the negligence of the defendant trial. In a case involving so much doubt in directing or permitting the guard of we hesitate to deny the Jefendants a jury the McGinty rolls, which the boy was optrial for the balance now claimed. The erating at the time of the accident, to be rule cannot be made absolute for the taken off. whole amount because the payment of The novel feature of this case is that the $200 and interest on the judgment the defendant used his own patent invento April 1, 1890, is properly averred and tion as a guard to avoid such accidents as now admitted. For the reasons stated, this, which must necessarily have frewith some reluctance, we refuse to allow quently occurred to his employees, by jurigment for the balance and interest. reason of the danger and hazard in oper
And now, October 16, 1893, the mo- ating the McGinty rolls, without protection is overruled and rule discharged. tion, and especially so when run by
steam power and at their highest speed,
Lancaster Co. in the rapidity with which the rolls reReese v. Hershey. Employer and employee:Dangerous em- certain conditions of the weather.
volve in taking the candy through it in ployment-Damages for accident, When a master voluntarily subjects his ser- of these machines with a sample of the
The defendant brought into court one vant to dangers, such as in good faith he ought to provide against, he is liable for any candy or caramel material, and its manaccident arising therefrom.
ner of working was shown to the Court Plaintiff's son, aged seventeen years, lost his and the jury. At the time of the accileft hand while operating a rolling machine in lent the boy was seventeen years of age, defendant's caramel factory. The boy was hired had been at his work but seven or eight to operate and had for seven weeks operated weeks, and had never operated the mathis machine, protected by a guard, the invention of the defendant. About three hours be- chine without the patent guard, nor seen fore the accident, the defendant took off the it so operated without it until that day. guard from this machine, as it was trouble. The testimony of the plaintiff shows that some, the candy being unusually sticky. He the candy on the morning of that day testified that he cautioned the boy against the danger of the machine. The boy denied all was particularly sticky, and wrapped recollection of this, but admitted that he knew itself around the rolls, thus impeding that the machine was dangerous without the their action, that the defendani took the guard. The court refused a non-suit and the guard off the machine, when the followjury found for the plaintiff. HELD; That the ing conversation occurred between them, case was properly submitted to the jury and a
as stated by one of the plaintiff's witnew trial should be refused.
nesses: “He cautione'l the boy to be careRule for new trial.
ful; he asked him whether he could work H. M. North for rule and defendant. at the machine with the guard off as well
George Nauman and B. F. Eshleman, as with the guard on, and hi said he contra.
could, or, he would try it." The defendOctober 9, 1893. BRUBAKER, J.--The ant then started the machine without the question now before us is, whether the guard, and after the boy had operated it question of negligence in this action about three hours the accident occurred. should have been submitted to the jury The boy did not remember that anything under the peculiar circumstances of the was said by the defendant before the macase. As we have said before, and also chine was started. in our charge to the jury, we now say, it It is not disputed that the boy was emis a close case; but we are not prepared ployed to operate the machine as it was to say that the testimony was insufficient perfected by the patent invention after it to warrant a recovery. After a careful had been applied, and that he had no exreview of the record, we are still unwill-perience whatever with the working of ing to assume the responsibility of de- the rolls without this protection before, termining it, and we shall therefore leave or received special instruction as to its the matter for the consideration of the operation when the protection had been appellate Court.
removed. The boy, on the ingenious reThe action is brought by the father for cross-examination by the counsel for the the loss of the services of his son by rea- I defendant, was led to say in the last